Citation Nr: 1536247
Decision Date: 08/25/15 Archive Date: 08/31/15
DOCKET NO. 13-20 650 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to an effective date prior to March 30, 2010 for the grant of a combined 100 percent disability rating.
2. Entitlement to an earlier effective date for the grant of service connection for right hand numbness.
3. Entitlement to an earlier effective date for the grant of service connection for left hand numbness.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from August 1984 to July 1992.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of July 2010 and June 2014 rating decisions of the New York, New York regional office (RO) of the Department of Veterans Affairs (VA).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
In a July 2010 rating decision, the RO granted service connection for cervical radiculopathy with left hand numbness. A 10 percent evaluation was assigned from January 15, 2003, and a 30 percent evaluation was assigned from March 30, 2010. Service connection was also granted for cervical radiculopathy with right hand numbness also rated a 10 percent disabling from January 15, 2003, and 30 percent disabling, effective March 30, 2010. The decision also granted service connection for major depressive disorder, evaluates as 30 percent disabling, effective November 19, 2004. These decisions resulted in a combined 100 percent rating, effective March 30, 2010.
In March 2011, the Veteran submitted a statement in which he wrote that a review of his claims folder "revealed that everything is in order;" except that he disagreed with the effective date of the combined 100 percent rating. He submitted several additional letters to this effect in March 2011 and April 2011.
The March 2011 statement constitutes a timely notice of disagreement with the effective date for the 100 percent evaluation. 38 C.F.R. § 20.201 (2015). The Veteran has not yet been provided a statement of the case regarding this issue. Therefore, the issue must be remanded for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999).
Beginning in February 2012, the Veteran submitted a series of letters in which he argued that the proper effective date for service connection for his bilateral hand numbness was January 15, 2003. He contended that the original claim he submitted on that date was never final because a December 19, 2005 substantive appeal of the denial for service connection for hand numbness was timely. The Veteran also continued to argue for the earlier effective date for the combined 100 percent evaluation. The Board notes that throughout this period, the effective date of service connection for the Veteran's bilateral hand numbness was already the January 15, 2003 date for which he was arguing.
The Veteran's arguments; however, appear to have cause the RO to review the appropriate effective date for the grant of service connection for the hand disabilities. On June 20, 2013, a rating decision was issued that proposed to sever the award of service connection for left hand numbness and right hand numbness from January 15, 2003 to December 19, 2005.
On June 21, 2013, a statement of the case was issued in which the only listed issues were the effective date of left hand numbness and right hand numbness. This essentially repeated the contents of the June 20, 2013 rating decision, once again explaining the basis of the proposal to change the effective date for the award of service connection for left hand numbness and right hand numbness from January 15, 2003 to December 19, 2005.
The Veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in July 2013, in response to the June 2013 statement of the case.
In August 2013, the Veteran was provided with a letter notifying him of the proposed change in the effective dates of service connection for left and right hand numbness from January 15, 2003 to December 19, 2005. He was further notified that he had 60 days in which to submit additional evidence, after which a final decision would be made. See 38 C.F.R. § 3.105(d) (2015).
In a June 2014 rating decision, service connection for left hand numbness and right hand numbness was severed for the period from January 15, 2003 to December 18, 2005. A new effective date of December 19, 2005 was established, effective as of August 1, 2014. See 38 C.F.R. § 3.105(d).
The Board notes that the Veteran could not have submitted a valid notice of disagreement for the December 19, 2005 effective dates for his right and left hand numbness prior to the June 2014 rating decision that established those dates. The June 2013 statement of the case for these issues was prior to the final decision in the matter, and the July 2013 substantive appeal was premature. Although a timely substantive appeal is not jurisdictional, a notice of disagreement is jurisdictional. Manlincon. Therefore, these issues are not properly before the Board. 38 C.F.R. § 20.200 (2015).
The Veteran's representative submitted argument pertaining to the effective dates of the Veteran's bilateral hand numbness to the RO in November 2014. The Board observes that this may be interpreted as a timely filed notice of disagreement with the June 2014 rating decision. The Veteran has not yet been provided a statement of the case for these issues since the matter became final. Therefore, these issues must also be remanded to the RO for the issuance of a statement of the case. Manlincon.
Accordingly, the case is REMANDED for the following action:
Provide the Veteran a statement of the case for the issues of entitlement to a combined 100 percent rating prior to March 30, 2010, entitlement to an effective date prior to December 19, 2005 for right and left hand numbness, to include the propriety of the severance of service connection prior to that date. These issues should not be returned to the Board unless he submits a timely substantive appeal.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).